Clerk Hillary Hall cites 10th Circuit decision on Utah ban

By Alex Burness and John Fryar, Camera Staff Writers

Posted:
06/25/2014 03:54:45 PM MDT

Michelle and Wendy Alfredsen with their son Oliver kiss after getting their marriage license at the Boulder County Clerk and Recorders Office in Boulder Wednesday June 25, 2014. (Paul Aiken / Daily Camera)

Boulder County Clerk and Recorder Hillary Hall

Boulder County began issuing marriage licenses to same-sex couples Wednesday for the first time since 1975, but Colorado's attorney general was quick to declare those licenses aren't valid because the state's gay marriage ban remains in effect.

Shortly after 3:30 p.m., Boulder County Clerk and Recorder Hillary Hall announced she would begin allowing same-sex marriages, citing the 10th U.S. Circuit Court of Appeals' ruling earlier in the day that Utah's ban on gay marriage violates the Constitution's guarantees of equal protection and due process.

Same-sex marriage licences

The Boulder County Clerk and Recorder's Office plans to resume issuing marriage licenses to same-sex couples beginning at 8 a.m. Thursday at its Boulder office at 1750 33rd St. That office is open 8 a.m. to 4:30 p.m. Monday through Friday. The clerk's Lafayette and Longmont offices are slated to begin doing the same on Friday morning.

"I believe the opinion is clear and it is important to act immediately," Hall wrote in a statement handed out at the clerk's office. "... Unless a court in Colorado or the U.S. Supreme Court tells me otherwise, I plan to begin issuing licenses."

Her office closed for the day just 50 minutes after that announcement, but that was enough time for two lesbian couples to wed.

Arvada's Wendy and Michelle Alfredsen were the first.

"The last 15 minutes have been a whirlwind," Wendy said upon arrival at the clerk's office in Boulder. "It's exciting, whether we're the first or the last. It's just exciting to finally be legally recognized."

Heather Shockey and Tracey MacDermott were married shortly after the Alfredsens. The Denver couple of 18 years — who together comprise one of nine plaintiffs challenging the state's ban on same-sex marriage — said their decision to wed in Boulder was made on the fly.

"I called Heather and said, 'Hey, I think we have to go do this,'" MacDermott said. "We've waited for a long time to have the rights enabled to us, and it's just pure excitement to me. Finally, we have this day.

"It certainly wasn't our desired location, but we didn't want to miss the opportunity should the state file some stop of marriage licenses overnight. We had to take advantage of this little window."

Constitutional prohibition remains in place

The window was indeed small, as Colorado Attorney General John Suthers quickly declared those licenses invalid, stating, "Colorado's constitutional prohibition on same-sex marriages remains in effect."

Hall said Wednesday afternoon that the Boulder County Attorney's Office told her that Wednesday's immediate stay of the 10th Circuit ruling applies only to Utah, while the opinion itself about the unconstitutionality of such bans applies to Colorado, which is under the jurisdiction of that appellate court.

"We think their opinion on the law was very clear," Hall said. "We've been following this closely, and were waiting to see what the ruling would be."

Hall said she implemented the new policy immediately because Colorado "has treated our families and friends and coworkers like second-class citizens too long."

She expressed total confidence that her decision Wednesday to issue licenses to same-sex couples would be permanent.

"I expect it to stay," Hall said after the first two couples were married. "I know our attorneys wouldn't have backed us for a symbolic gesture."

But Suthers responded with this statement: "Today's decision by the 10th Circuit Court of Appeals was stayed by the court and has not gone into effect even in Utah, let alone in Colorado. Any marriage licenses issued to same-sex couples in Colorado before a final court resolution of the issue are invalid."

He added: "As Colorado Attorney General J.D. MacFarlane opined in 1975 when the Boulder County clerk and recorder issued same-sex marriage licenses, 'the issuance of a license under such circumstances is useless and an official act of no validity and may mislead the recipients of the license and the general public.'"

Newlyweds Tracey MacDermott and Heather Shockey face the television cameras after getting their marriage license at the Boulder County Clerk and Recorder's Office in Boulder on Wednesday. (Paul Aiken / Daily Camera)

"I was not surprised by (Suthers') opinion," Hall said. "We still feel these are legal and hope to issue them."

'The law hasn't actually changed yet'

Because 10th Circuit decisions are binding in the state of Colorado, the precedent established by the case that was the subject of the appellate court's ruling is applicable to the same-sex marriage ban contained in the Colorado Constitution, Hall's staff maintains.

But Katherine Franke, director of Columbia University's Center for Gender and Sexuality Law, said that Hall is "on the right side of history, but outside of where the law is."

"We're now seeing circuit courts ruling in favor of marriage equality, which is wonderful," she said. "I can understand that there are officials governed by the circuits' ruling that are excited to marry same-sex couples, but they're not legally entitled to do so."

In Boulder County, Franke continued, "you have a local official anticipating a change in the law, but the law hasn't actually changed yet."

U.S. Rep. Jared Polis, a Boulder Democrat and one of seven openly gay members of Congress, applauded Hall's decision and expressed little worry that the entire state would follow suit in the near future, even if Wednesday's licenses are nullifed.

"I'm confident that whether same-sex marriage is legalized legislatively, by the people of our state or judicially, that they will soon be recognized nationally and internationally," he said.

"It's personally exciting," Polis added, "to see my hometown and home county follow in the steps of many other states and finally allow this."

'Things are changing fast'

Former Colorado Supreme Court Justice Jean Dubofsky, when told of Hall's action on Wednesday evening, said, "Good for her. It's one of those things whose time has come."

Dubofsky, a Boulder resident who successfully fought Colorado's anti-gay Amendment 2 before the U.S. Supreme Court, said "it's a very different sort of situation," both socially and legally, than in 1975, when Rorex granted marriage licenses to several same-sex couples.

Dubofsky said case law and court decisions in recent years have been "overwhelmingly in favor of gay rights," which she said is "a far cry" from 1975.

The Rev. Luke Grobe, a gay associate minister at the United Church of Christ of Longmont, applauded Hall "for taking the initiative,"

"I think the momentum in the U.S. towards recognizing same-gender relationships is wonderful to witness," Grobe said. "It truly is great to see the country catch up with what my church has been preaching for over a decade."

Mardi Moore, executive director of the local advocacy group Out Boulder, said waiting on the state ruling "weighs on (her) mind," but called Wednesday's development "huge."

"Things are changing fast for us," she said. "The fact that families got marriage licenses issued today, there's not much that's bigger than that on this stage.

"Boulder is a trail blazer, and Boulder County has done amazing things over the years, but I think this is a basic civil right that we should have had long ago. The wheels turn slowly, though, and it's taken a lot of hard work to get us to this point. Being a 52-year-old lesbian, I didn't know the day would come."

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